Articles Posted in Emotional Distress Cases

In Goetz v. Autin, No. W2015-00063-COA-R3-CV (Tenn. Ct. App. Feb. 10, 2016), plaintiff filed a rather unclear complaint that appeared to assert four causes of action: (1) defamation, (2) malicious prosecution, (3) abuse of process and (4) intentional infliction of emotional distress. The trial court dismissed the entire complaint for failure to state a claim, and the Court of Appeals affirmed.

Plaintiffs factual allegations were essentially that defendants “made defamatory statements to [his] family members, neighbors and friends, subjecting [him] to contempt and ridicule and threatening his job[;]” that defendants filed suit against plaintiff on May 12, 2010 with “no reasonable basis” for the action and with an “ulterior motive;” that defendants “committed an act in the use of process other than such as would be proper in the regular prosecution of the charges alleged[;]” that defendants eventually voluntarily dismissed their claims; that the lawsuit contained false statements about plaintiff; and that plaintiff suffered “severe physical and emotional injury” due to the defendant’s lawsuit and statements. Based on these facts, the Court of Appeals affirmed the ruling that the complaint failed to state a claim for the causes of action pursued by plaintiff.

On the abuse of process claim, the Court noted that “a plaintiff must allege the existence of an ulterior motive and an act in the use of process other than such as would be proper in the regular prosecution of the charge.” Moreover, “[t]he mere initiation of a lawsuit, though accompanied by a malicious ulterior motive, does not constitute an abuse of process.” (internal citation omitted). Instead, a “plaintiff must allege some misuse of process after the initiation of the lawsuit.” Here, the complaint failed to allege that defendants did anything more than file the “original processes of the court.” Since the institution of a lawsuit alone is not enough to support an abuse of process claim, plaintiff’s complaint failed to state a claim for this cause of action.

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Erin Andrews won a jury verdict yesterday in Nashville for $55,000,000 in her case against the company that owned and managed a local hotel.  What happens next?

  1. Andrews’ lawyers will prepare a judgment reflecting the jury’s verdict.  Look for a fight over whether joint and several liability or several liability applies that will be brought to head during this part of the proceedings.  The hotel lawyers will ask the Court to enter judgment declaring that several liability controls the case and thus the hotel is “only” responsible for the hotel’s fault percentage multiplied by the total damages (about $27,000,000).   Andrews’ lawyers will ask for joint and several liability, arguing that the logic of Turner v. Jordan  and its progeny should apply and result in the imposition of joint and several liability, making the hotel liable for the entire $55,000,000.   With $28,000,000 at play, look for a real fight over this issue.
  2. The hotel will attempt to do jury interviews in an effort to find some way to impeach the verdict.

This week, the Tennessee Supreme Court overruled Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008), “return[ing] to a summary judgment standard consistent with Rule 56 of the Federal Rules of Civil Procedure.”

In Rye v. Women’s Care Center of Memphis, PLLC, No. W2013-00804-R11-CV (Oct. 26, 2015), plaintiff had Rh negative blood, and defendant failed to test and subsequently treat her with a specific injection during her third pregnancy. Because she was not treated, plaintiff became Rh-sensitized. The record contained extensive testimony regarding the risks to plaintiff and to any future pregnancies. Essentially, regarding future children, the evidence showed that if several contingencies occurred—“a future pregnancy, an Rh positive fetus, antibodies crossing the placenta—it [was] undisputed that the unborn fetus would face a number of risks, ranging from mild to severe.” Because plaintiff and her husband were Catholic, they asserted that they were limited in what steps they could take to avoid future pregnancies. Regarding the harm or risks to plaintiff herself, plaintiff’s own expert testified that the risk to her was that if she had an emergency situation and needed blood, the transfusion process could be longer because finding a match for sensitized blood could take more time.

Plaintiffs’ complaint asserted causes of action for health care liability, negligent infliction of emotional distress (NIED) for both plaintiff and her husband, and disruption of family planning. Defendants moved for summary judgment, arguing that the plaintiffs had “no existing actual injuries or damages resulting from the deviation,” that plaintiffs had “failed to allege future injuries to a reasonable medical certainty,” and that plaintiffs did not properly support their NIED claims. The trial court granted summary judgment as to all claims “for future damages to [plaintiff] arising from blood transfusions or future pregnancies,” finding that those damages had “yet to be sustained” and were speculative. The trial court also granted summary judgment on husband’s NIED claim, as he had not suffered physical injury and had not offered the required expert proof for an emotional distress action. Finally, the trial court granted summary judgment as to plaintiff’s “independent cause of action for disruption of family planning,” finding that Tennessee did not recognize such a claim. The court, however, denied summary judgment on plaintiff wife’s NIED claim, ruling that there was a genuine issue of material fact as to whether the change in her blood constituted a physical injury and also holding that she would be allowed to present evidence regarding how her family plans had changed as an element of her damages.

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A recent Tennessee Court of Appeals case serves as a reminder that the bar for proving outrageous conduct is high for plaintiffs attempting to make a case for intentional infliction of emotional distress (“IIED”). In Kindred v. Nat’l College of Bus. and Tech., Inc., No. W2014-00413-COA-R3-CV (Tenn. Ct. App. March 19, 2015), plaintiff sued her former college for, among other things, IIED related to the cancellation of her classes for one term. Plaintiff had her GED, and at the time of her initial enrollment the school did not require students to have an official copy of their equivalency certificate in their file. That policy later changed. Two weeks prior to the start of term 107, plaintiff went to the college to get a copy of that term’s schedule and was informed that her file did not have an official copy of her GED and that she was thus not in compliance with the school’s requirements. Plaintiff alleged that she presented the school with her GED equivalency card, but she did not dispute that she took no steps to get an official copy of her GED into her file.

Plaintiff started attending classes at the beginning of term 107, but after one week the director of the campus cancelled plaintiff’s schedule because her file did not comply with the official copy requirement. The director told plaintiff that she would not be charged tuition for that term and that she could return to classes the next term as long as she had provided an official copy of her GED. Plaintiff provided the school with her GED on the same day she was informed about her schedule cancellation, but the director refused to reinstate her for that term. Two months later, plaintiff enrolled in another term (term 111) at the same college. She was not allowed to enroll until she paid an outstanding balance for textbooks from term 107 (the cancelled term), which she paid after protest. Plaintiff attended two additional terms at the school, but at the end of term 113 she received a failing grade, which she unsuccessfully challenged. After that, plaintiff alleged that “she could no longer suppress her pain and distress that began with [defendant’s] degrading termination of her enrollment eight months earlier. Plaintiff further allege[d] that this forced her to cease her attendance at [the school] and abandon her educational/professional goals.”

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Memphis, Tennessee medical malpractice cases always seem to have a more than their fair share of twists and turns.  This health care liability case has more twists and turns than the Cherohala Skyway TN 165 / NC143 from Tellico Plains to Robbinsville ( a great road for our motorcycling friends).

During her third pregnancy, Plaintiff Michelle Rye was under the care of Dr. Diane Long, a physician with Women’s Care Center of Memphis. Because Ms. Rye has Rh negative blood, the standard of care dictated she be given a RhoGAM injection during her pregnancy.   The defendants failed to give Ms. Rye the RhoGAM injection and she developed Rh-sensitization as a result.   Rh-sensitization is a condition in which, if the in utero child has Rh positive blood, the mother’s antibodies attack the baby’s blood cells causing injury to the baby. 

The defendants admitted they failed to comply with the standard of care but denied the plaintiffs had suffered any damage. In particular, in support of their motion for summary judgment, the defendants attached the affidavit of Dr. Stovall who opined it could not be said with any reasonable degree of medical certainty that any Rh-sensitized female would ever sustain any injuries or damage and the same was true even if the woman conceived another child as the child would have to have Rh-positive blood for the condition to be in play.

Out of a surprisingly ugly set of circumstances (only some of which I’ve mentioned here), we get an opinion on emotional distress claims that clarifies and progresses the law forward. 

In Coleman v. The Humane Society of Memphis and Shelby County, Plaintiff was a veterinarian who was hired by Defendant Humane Society to serve as its new staff veterinarian.  Plaintiff had run-ins with Defendant’s executive director about the conditions in which animals were kept at the Humane Society. Plaintiff later discovered that an employee at the Humane Society was illegally euthanizing cats without permission or a license using controlled drugs purchased with Plaintiff’s DEA license.

Plaintiff complained to the executive director and asked that the employee be fired, but the executive director did not terminate the employee. Plaintiff then complained to the Humane Society’s board of directors.  Within two months, Plaintiff’s hours, pay, and ultimately her job were cut.

A Texas police officer has sued a 9-1-1 caller for failing to warn the 9-1-1 official (and thus the police officer) that the police responding to the call would be walking into a dangerous situation.  The responding officer was attacked by a man at the home who had allegedly been using bath salts for several days.

That dog would not hunt in Tennessee. Tennessee (and most states) have what was historically known as the "policemen and firemen’s" rule which, by the way, applies to female police officers and firefighters as well.

Here is a general statement of the rule from Tennessee’s leading case on point, Carson v. Headrick , 900 S.W.2d 685 (Tenn. 1995):

Negligent infliction of emotional distress is a relatively new tort in Tennessee.  True, the tort existed in the early days of Tennessee tort law (not by that name, but the root concept was out there) but the circumstances giving rise to liability were extremely narrow.

All of that changed a little less than twenty years ago and we know have a nice body of law on negligent infliction of emotional distress claims.  I wrote an article on subject in an article  for the May, 2013 edition of the Tennessee Bar Journal, a publication of the Tennessee Bar Association. Click on the link o get a good grasp on the current Tennessee law of negligent infliction of emotional distress

 

The Illinois Supreme Court has issued an opinion in Lawlor v. North American Corporation of Illinois, Case No. 112530 (Oct. 18, 2012), holding that (a)  the tort of intrusion upon seclusion is recognized in Illinois and (b) held that an employer liable for the torts of a non-employee private investigator because the investigator was acting as the employer’s agent.  

Defendant North American hired a private investigator to determine whether Lawlor, a former employee of North American, had violated a covenant not to compete contained in her employment contract with the company.  The private investigator assessed the Lawlor’s cell and home telephone records without her permission, causing her emotional distress.

The Court first recognized that existence of a tort that had never been expressly recognized by the High Court in Illinois.  The Court adopted Section 652B of the Restatement (Second) of Torts, which  provides as follows: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of  another or his private  affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”

The fungal meningitis outbreak will result in four different classes of those with claims for damages against those who are responsible for the harm:  (1)those who die; (2) those who contract the disease and are treated with no long-range effects; (3) those who contract the disease, are treated, but are left with long-range effects; and, (4) those who learn they were exposed to the contaminated product but never contracted the disease.  (Note:  I understand this is a simple breakdown and that in fact there will be several sub-groups within one or more of these groups.)

Do the people in the last grouping have a claim for damages under Tennessee law?  That is, if a person can prove that he or she was exposed to the contaminated product, knew of the exposure, experienced understandable emotional distress after he or she learned of the exposure, is there a claim for damages under Tennessee law?

I believe the answer to that question is "yes."  The case I turn to for support of this opinion is Carroll v. Sisters of St. Francis Health Services, Inc., 868 S.W.2d 585 (Tenn. 1993).  The issue in Carroll was whether a plaintiff may recover damages for negligent infliction of emotional distress, based on the fear of contracting the Acquired Immunodeficiency Syndrome (AIDS), without presenting evidence that he or she was actually exposed to the human immunodeficiency virus (HIV or the AIDS virus)  The Court answered this question "no" and dismissed the case.